SZSRQ v Minister for Immigration & Anor
[2014] FCCA 2205
•25 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSRQ v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 2205 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether in considering if it was reasonable for the applicant to relocate to Karachi the only harm the Tribunal considered to be relevant was harm that would constitute persecution as defined in s.91R(1) of the Migration Act 1958 (Cth) (Act) – whether the Tribunal correctly applied the relocation principle – whether in considering if it would be reasonable for the applicant to relocate to Karachi the Tribunal identified and took into account the practical realities the applicant could reasonably expect to face in Karachi – whether in considering if it would be reasonable for the applicant to relocate to Karachi the Tribunal identified and took into account all of the circumstances relating to the applicant – whether the Tribunal failed to consider claims that were before it – whether “continuing persecution by dispossession” stated a valid claim for protection under the Refugee Convention – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B), 91R(1), 91R(1)(b) |
| Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 SZTBR v Minister for Immigration & Anor [2013] FCCA 2093 at [30] |
| Applicant: | SZSRQ |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 579 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 11 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 25 September 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr B D Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
Subject to order 2:
(a)The decision of the second respondent made on 22 February 2013 affirming the decision of the delegate of the first respondent made on 9 August 2012 is quashed.
(b)The second respondent determine according to law the application made to it for review of the decision of the delegate of the first respondent made on 9 August 2012 refusing to grant the applicant a protection visa.
The applicant has liberty to apply by no later than 9 October 2014 to relist the matter before Judge Manousaridis for the purpose of the parties making submissions on whether the Court should grant the applicant leave to file an amended application claiming declaratory relief and, if such leave is granted, whether the Court should grant declaratory relief.
The first respondent pay the applicant’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 579 of 2013
| SZSRQ |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a national of Pakistan. He is also a Pashtun Shi’a Muslim. He lived in Parachinar in the Kurram Agency, Pakistan.
The applicant applied to the first respondent (Minister) for a protection visa. He claimed he would be persecuted and otherwise harmed if he were to return to Pakistan. He claimed he would be persecuted and harmed because he is a Pashtun, and because he is a Shi’a Muslim.
Both a delegate of the Minister, who rejected the applicant’s claim, and the second respondent (Tribunal), who affirmed the delegate’s decision, accepted the applicant was a witness of truth, and that he had a well-founded fear of persecution if he were to return to Parachinar. Both the delegate and the Tribunal concluded, however, the applicant would not face persecution or harm if he were to relocate to Karachi. And the delegate and the Tribunal concluded it was reasonable for the applicant to relocate to Karachi.
The applicant claims that in concluding it was reasonable for him to relocate to Karachi, the Tribunal made a number of jurisdictional errors. The applicant also claims the Tribunal made additional jurisdictional errors in affirming the delegate’s decision not to grant the applicant a protection visa.
To understand and determine the applicant’s claims in this Court, it will be necessary first to set out in detail the applicant’s claims for protection, and the Tribunal’s reasons for affirming the delegate’s decision.
The applicant’s claims for protection
The essential asserted facts on which the applicant relied for his claim for protection are as follows:[1] since 2007 Shi’a Muslims in Parachinar, Kurram Agency, were being targeted for no reason other than their religion; in August 2008 a cousin of the applicant, who was a practising Shi’a Muslim, was executed, and his body was found with a note warning other Shi’a Muslims not to support local police and military operations against the Taliban; in December 2008, another cousin of the applicant was injured in a terrorist blast in Kissa Kahanni Bazaar; the applicant’s family own a farm in his village consisting of two parcels of land, the larger of which is surrounded by mountains located on the Afghanistan side of the border, and from which Taliban who hide there launch attacks against Shi’a Muslims; because of these attacks, in late 2010 the applicant stopped working on the farm; after unsuccessfully seeking for a year to find alternative employment, the applicant returned to work on the applicant’s farm on the larger parcel of land; he did so for three months, but during that period the attacks from the surrounding mountains continued; the applicant stopped working because it was only a matter of time before he would be killed; the applicant then fled Pakistan because he felt he had no option but to flee Pakistan to save his life.
[1] CB47-51
In his application for a protection visa, the applicant also claimed he feared persecution or harm if he fled to any other part of Pakistan.[2] That is so because he would easily be identified as a Shi’a Muslim: his Pakistani identification card states the applicant is from Parachinar where most people are Shi’a Muslims; and he has scars on his back as a result of his participating in the Ashura festival, where it is a common practice for Shi’a Muslim worshippers, as a sign of mourning, to cut themselves with chains with small blades on their back, chest, and head. The applicant also claimed he does not have family or other support network outside Parachinar, and he has limited skills which he can use to gain meaningful employment.
[2] CB50
The Tribunal’s reasons
The applicant made the same claims before the Tribunal, but gave further details about the events central to his claim for protection; and the applicant identified what he submitted were factors relevant to the reasonableness of relocation which the delegate did not address. The applicant also gave evidence at a hearing before the Tribunal on 19 November 2012.
As I say above, the Tribunal accepted as credible the applicant’s claims about harm suffered in Pakistan.[3] The Tribunal also found there is a real chance the applicant will suffer serious harm “for the essential and significant reason of his religion and adverse opinions imputed to him by Sunni’s (and the Taliban and like Sunni extremist groups) who would wish to harm him if he was to return to Parachinar and, more broadly, the Kurram agency”.[4] The Tribunal then turned to the question of whether “it may be reasonable for the applicant to relocate in Pakistan to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”.[5]
[3] CB216, [72]
[4] CB216, [74]
[5] CB216, [75]
The Tribunal found there was no appreciable risk of the occurrence of the feared persecution in Karachi.[6] Its finding was based on the following four matters: the Tribunal did not accept the applicant had a profile such that the Taliban or groups which made threats of the sort made in Parachinar would pursue the applicant in Karachi;[7] there was no country information that showed that Pashtun Shi’as from Parachinar have been attacked in Karachi;[8] although there have been attacks on Shi’as in Karachi, the risk of the applicant suffering harm because he is a Pashtun Shi’a is remote;[9] the risk was remote because the Shi’as that have been attacked were professionals or had engaged in religious processions, Shi’as constitute about a third of the population of Karachi, the political violence that occurs in Karachi is predominantly between workers and supporters of political parties, and the applicant is not and has never been politically active;[10] and the applicant was not the victim of harm during the three months he had lived in Karachi.[11]
[6] CB217, [81]
[7] CB216, [77]
[8] CB216, [78]
[9] CB217, [79]
[10] CB216, [78]; CB217, [79]
[11] CB217, [81]. At CB209, [38] the Tribunal says that the applicant “went to Karachi to live and work” and then at CB210, [42] it says “he left Karachi after three months…”
Having concluded there was no appreciable risk of the applicant’s being persecuted in Karachi, the Tribunal noted the applicant has completed ten years of schooling and attended another college after that; the applicant speaks Pashto and Urdu; he has experience working on his family’s farm; and he managed to find work when he lived in Lahore and Karachi.[12] On the basis of these matters, the Tribunal found that the applicant’s “experiences in that respect indicate that he should be relatively well-placed to settle into Karachi and find employment and accommodation again”.[13] The Tribunal expressed its overall conclusion as follows:[14]
In all of the circumstances, the Tribunal finds that the applicant can reasonably be expected to relocate to Karachi where there is no appreciable risk of the occurrence of the feared persecution.
[12] CB217, [81]
[13] CB217, [81]
[14] CB217, [82]
The Tribunal considered, but did not accept the submissions made by the applicant’s representative about the issue of relocation.[15]
[15] CB217-219
Finally, the Tribunal considered whether the applicant satisfied the complementary protection criterion. The Tribunal concluded that, for the same reasons it found the applicant had a well-founded fear of persecution in the Kurram Agency, the Tribunal concluded there was a real risk the applicant will suffer significant herm there.[16] The Tribunal also concluded, however, that it would be reasonable for the applicant to relocate to Karachi where there would not be a real risk that he will suffer significant harm.[17]
Ground 1 – assessing reasonableness of relocation solely by reference to harm amounting to persecution or significant harm
[16] CB219, [99]
[17] CB219, [102]
The applicant claims that in concluding it was reasonable for the applicant to relocate to Karachi the Tribunal made the same error the Federal Court found the Independent Merits Reviewer (IMR) made in MZYQU v Minister for Immigration and Citizenship.[18] To assess this ground, it is necessary to identify the error the Federal Court found the IMR made in that case.
[18] [2012] FCA 1032 (Dodds-Streeton J)
In MZYQU the IMR concluded the applicant, a national of Afghanistan who had lived illegally in Iran for fifteen years, would face a real chance of persecution travelling through Wardak and Bamyan to Ghor, and thus could not travel to his home location. The IMR also concluded, however, that it was reasonable for the applicant to relocate to Kabul, even though the applicant claimed he would be regarded as a foreigner in Kabul and would lack protection. The IMR so concluded because recent reports did not suggest that returnees would suffer a level of harm that would meet the criterion of “serious harm” as required by s.91R(1)(b) of the Migration Act 1958 (Cth) (Act). The IMR so concluded even though the IMR accepted that to the “extent that returnees have been harmed, it appears that they have either been victims of generalised violence or have had particular personal circumstances that set them apart”.[19]
[19] [2012] FCA 1032 at [32]
Dodds-Streeton J held that the IMR made the following error:[20]
In my opinion . . . the IMR’s error lay not in considering that a risk of “serious harm as required by s 91R(1)(b)” was relevant to relocation, but in implicitly treating such harm as the only level or kind of harm which could affect the reasonableness of relocation.
While the IMR’s reasons should not be read with over-zealous scrutiny, the failure to include the risk of generalised violence or harm due to personal circumstances in the list of relevant factors weighing against the reasonableness of relocation in [88] indicates that any harm that was not “serious harm as required by s 91R(1)(b)” was excluded from consideration in that context.
[20] [2012] FCA 1032 at [61] and [62]
In SZSSM v Minister for Immigration & Anor[21] Judge Driver found the Tribunal in that case made a similar error as that made by the IMR in MZYQU. In SZSSM Judge Driver concluded:[22]
While in this case the Tribunal did not expressly limit its consideration of the risk of violence to the applicant engaging s.91R(1), that limitation was inherent in its reasoning. In considering the practicality of relocation, the Tribunal discounted the risk of violence which did not engage that provision, either because of a lack of a Convention nexus, or because of a lack of systematic and discriminatory conduct.
[21] [2013] FCCA 1489
[22] [2013] FCCA 1489 at [90]
From the decision of and reasoning in MZYQU the following principle may be stated: the Tribunal will make a jurisdictional error if the Tribunal, when determining whether it is reasonable for a visa applicant to relocate to another place, fails to consider whether there is a real chance the visa-applicant will suffer harm in the suggested place of relocation other than as a result of persecution as defined in s.91R(1) of the Act. This principle can also be stated in positive terms: the Tribunal will make a jurisdictional error if, when considering whether it is reasonable for a visa applicant to relocate to another place, the Tribunal expressly or impliedly assumes that the only potential harm to the visa-applicant the Tribunal is required to consider is serious harm that may arise in the suggested place of relocation from persecution that involves systematic and discriminatory conduct.
Did the Tribunal in the case before me, when considering whether it was reasonable for the applicant to relocate to Karachi, assume that the only potential harm to which the applicant might be exposed is serious harm from persecution involving systematic and discriminatory conduct? The applicant submits the Tribunal did so assume. The applicant refers to a number of passages from the Tribunal’s reasons. First, there is the passage at paragraph 76 of the Tribunal’s reasons where the Tribunal said that it “assessed whether it may be reasonable for the applicant to relocate to Karachi in the event that, objectively, there is no appreciable risk of the occurrence of the feared persecution in that city”. And second, there is the Tribunal’s conclusion at paragraph 81, and repeated in paragraph 82 of its reasons, that “there is no appreciable risk of the occurrence of the feared persecution in Karachi”.
The Minister, on the other hand, submits the Tribunal did not assume that the only potential harm to the applicant it had to consider when determining whether it was reasonable for the applicant to relocate to Karachi was serious harm arising from persecution involving systematic and discriminatory conduct. First, he submits that the Tribunal did not, as the IMR did in MZYQU, expressly proceed on the basis that serious harm as defined in s.91R(1) of the Act was the only kind of harm that could affect the reasonableness of his relocating to Karachi. Second, although it is true the Tribunal identified as an issue whether there was an appreciable risk of the feared persecution in Karachi, it did so because, under the authorities,[23] that is one of the matters of which the Tribunal must be satisfied before it can conclude a visa-applicant could reasonably relocate to a place other than the place from which the visa-applicant came. And third, the Tribunal’s findings about the risk of harm to the applicant if he returned to Karachi were not made by reference to a notion of harm limited by s.91R(1) of the Act.
[23] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at page 26 ([24]); SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 at page 55 ([14])
Whether or not the only potential harm to the applicant the Tribunal considered to be relevant in assessing the reasonableness of the applicant’s relocating to Karachi was serious harm from persecution within the meaning of s.91R(1) of the Act can only be determined after I identify the applicant’s submissions on relocation the Tribunal addressed, and the Tribunal’s reasoning for not accepting those submissions.
The first submission was that Shi’as are attacked in Pakistan and Karachi.[24] After acknowledging that apart from attacks on religious processions and the killing of Shi’a professionals in Karachi, there were also other attacks, the Tribunal concluded that it remained of the view, in the context of the size of the Shi’a population in Karachi that “the risk of the applicant suffering harm because of his religion and his will to practice his religion is remote”.[25]
[24] CB217, [84]
[25] CB217, [85]
The second submission, or rather, set of submissions, was that extremist terrorist groups, including the Taliban from Afghanistan, have a presence, and operate in Pakistan and Karachi; the goals of these groups are to kill or be hostile to Shi’as; branches of the government and intelligence services have links to these organisations and they have killed journalists who investigated that; a climate of fear pervaded the media coverage of that issue and militant groups; those members of the government that are trying to allow greater religious freedom in Pakistan have been attacked and the government generally failed to address violence against Shi’as; the authorities are corrupt and are unable to stop sectarian violence; some extremist groups have said that the applicant’s tribe that has opposed the Taliban should be killed, and reference was made to terrorist attacks in the Kurram Agency and in Pakistan in general, and that the applicant was easily identifiable as a Pashtun Shi’a; a Pashtun Shi’a from Parachinar was killed in Islamabad by an extremist group.[26] The Tribunal, while acknowledging all these matters, concluded that “for the reasons given above” there “is only a remote risk of the applicant suffering harm in Karachi because of his tribal origin, his religion and the part of Pakistan he comes from”.[27]
[26] CB217-218, [86]-[88]
[27] CB218, [90]
The third submission the Tribunal considered was one that relied on country information which showed that people from a political party representing Mohajirs on occasions go to a hospital in Karachi to prevent Pashtuns from receiving medical treatment, and which also referred to violence in Karachi in which Pashtuns have been killed.[28] The Tribunal rejected that submission because the Pashtun population in Karachi is significant and it did not consider these isolated reports as demonstrating that the applicant would be denied medical treatment in Karachi. [29] The Tribunal also concluded that the applicant is not politically active and the Tribunal considered that “the risk of him suffering harm in this violence because he is Pashtun is remote”.[30]
[28] CB218, [91]
[29] CB218, [91]
[30] CB218, [92]
It will be seen that the potential harm to the applicant the Tribunal considered the applicant would suffer if he were to relocate to Karachi, was harm the applicant would suffer either because of his religion or his ethnicity. This does not, however, indicate that the Tribunal considered that the only harm it was required to consider was serious harm flowing from persecution within the meaning of s.91R(1). The Tribunal’s conclusions were made in response to the applicant’s submissions. Those submissions were to the effect that the applicant would suffer harm because of his religion and ethnicity. The applicant did not submit to the Tribunal or to the delegate that it would be unreasonable for the applicant to be relocated to Karachi because he would face a risk of generalised violence or harm there. And it was not reasonable for the Tribunal to have inferred that a fear of generalised violence or harm in Karachi was a ground on which the applicant relied against the Tribunal deciding that Karachi was a reasonable place to which the applicant could relocate.
This part of the applicant’s claim, therefore, does not succeed.
Ground 1A – failure to consider practical realities of relocation
The applicant submits that when considering whether it is reasonable for the applicant to relocate to Karachi the Tribunal was required, but failed, to consider the particular circumstances of the applicant having regard to practical realities. The practical realities the applicant submits the Tribunal was required, but failed, to consider (asserted practical realities) are the presence of Sunni extremists in Karachi and reports that Shi’a neighbourhoods in the city are visibly barricaded and fortified;[31] Karachi having witnessed a number of large scale attacks on Shi’a targets since late 2009;[32] the Pakistan government’s having been unable to stop the attacks against Shi’as not only in Karachi but elsewhere in Pakistan;[33] reports of links between the government and extremist groups, their presence in Karachi and Pakistan and their aims;[34] and the applicant’s being identifiable as a Pashtun Shi’a from Parachinar and that he comes from a group that have opposed the Taliban there.[35] The applicant submits the Tribunal should have considered, but failed to consider all these matters when determining whether it was reasonably practicable for the applicant to relocate to Karachi. Instead, the Tribunal exclusively focused on whether the applicant would be hurt in Karachi and whether he would be able to obtain employment.
[31] CB213, [58]
[32] CB213-214, [59]-[60]
[33] CB218, [89]
[34] CB218, [89]
[35] CB218, [89]
The Minister, on the other hand, submits the applicant’s ground is based on an incorrect understanding of the legal principles the Tribunal was required to observe when considering whether it was reasonable for the applicant to relocate to Karachi. The Minister accepts that, when determining whether it is reasonable for a visa applicant to relocate, the Tribunal must undertake two inquiries, the first being whether the visa applicant would have a well-founded fear of persecution in the place of relocation, and the second being whether it would be reasonable for the visa applicant to relocate to that place. The Minister nevertheless submits that the relocation test is not comprised of two, separate limbs. The two enquiries are not independent. While the Tribunal did not consider each of the five matters referred to by the applicant under the heading of reasonableness, the Tribunal undoubtedly considered the matters as a whole. The Minister particularly relies on the reasons for judgment of Emmett J (as his Honour then was) in SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs, and in particular his Honour’s observation that the Tribunal, when considering the reasonableness of relocation, was not required “as a separate matter to elaborate upon how relocation could practically occur”.[36]
[36] [2005] FCA 1168 at [26]
The competing submissions give rise to the following issues:
a)Does the relocation principle comprise of two limbs?
b)Whether or not it comprises of two limbs, did the relocation principle require the Tribunal to consider the asserted practical realities?
c)If so, did the Tribunal consider the asserted practical realities in the manner required by the relocation principle?
To resolve these issues, it will be necessary first to examine the “relocation principle”, and the nature of the inquiry that must be undertaken when considering whether relocation is “reasonable”.
The “relocation principle”
The “relocation principle” refers to a ground for concluding that a refugee claimant does not have a well-founded fear of persecution in his or her country of nationality. It comes into play where the fear of persecution is well-founded in relation to a part of the territory of the applicant’s country of nationality, and where it is claimed or it is otherwise apparent there is available to the applicant protection by his country of nationality in another part of the country of nationality, and it is reasonable for the applicant to relocate to that part.[37] The relocation principle received its first detailed consideration in Australia by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[38] and in particular, in the reasons for judgment of Black CJ.
[37] SZTBR v Minister for Immigration & Anor [2013] FCCA 2093 at [30]
[38] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
In Randhawa, Black CJ viewed the relocation principle as arising from the fundamental purpose of the Convention. The purpose of the Convention is to afford protection by the international community to persons who cannot avail themselves of the protection of their country of nationality against persecution in the territory of their country. His Honour set out the following passage from the reasons for judgment of La Forest J delivering the judgment of the Supreme Court of Canada in Attorney-General of Canada v Ward:[39]
International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason James C Hathaway refers to the refugee scheme as ‘surrogate or substitute protection’, activated only upon failure of national protection: see The Law of Refugee Status (Toronto: Butterworths, 1991), at p 135.
[39] (1993) 103 DLR (4th) 1 at page 12. This passage was quoted at (1994) 52 FCR 437 at page 441
Black CJ said, however, that whether or not a person fearing persecution can avail himself or herself of the protection of his or her country of nationality must be assessed by reference to the capacity and willingness of that country to afford protection throughout the entire country. If a person can access effective protection against persecution in some part of his or her country of nationality, that person will not be entitled to protection under the Refugee Convention. Black CJ referred with approval to the following passage from The Law of Refugee Status by James C Hathaway:[40]
A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be at one's own state.
The surrogate nature of international protection is clear from the text of the Convention definition itself, which limits refugee status to a person who can demonstrate inability or legitimate unwillingness ‘to avail himself of the protection of [the home] state’. That is, the focus of analysis is the relationship between the claimant and her national government. Where there is no de facto freedom from infringement of core human rights in a particular region (for example, due to the actions of an errant regional government or forces which make the exercise of national protection unviable), but the national government provides a secure alternative home to those at risk, the state's duty is met and refugee status is not warranted.
[40] (1994) 52 FCR 437 at page 441
That the country of nationality may be in a position to afford protection to the claimant for refugee protection in some part of the country did not necessarily mean that the claimant for refugee protection would not be considered to be a “refugee” within the Convention definition. The decision-maker must also be satisfied that it could reasonably be expected that the claimant should relocate to that part of the country. And when considering whether it could reasonably be expected that a person relocate, “the practical realities facing a person who claims to be a refugee must be carefully considered”.[41] The “range of the realities”, his Honour said, “extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality”.[42]
[41] (1994) 52 FCR 437 at page 442
[42] (1994) 52 FCR 437 at page 442
The relocation principle was considered by the High Court in SZATV v Minister for Immigration and Citizenship.[43] The High Court held that such principle, although it is not expressly referred to in the Convention definition of “refugee”, nevertheless was one that could be “distilled from the text of the Convention definition”[44] by a process of reasoning described by Lord Bingham of Cornhill in the following passage from his Lordship’s speech in Januzi v Secretary of State for the Home Department:[45]
The Refugee Convention does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
[43] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
[44] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at page 24 ([15]) (Gummow, Hayne, Crennan JJ)
[45] Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at page 440 ([7])
This passage also contains a statement of the relocation principle: a person will not be regarded as being outside the country of his or her nationality owing to a well-founded fear of persecution - and, hence, will not be a “refugee” within the meaning of the Convention - if there is a place of relocation within that person’s country where the protection of his or her country would be available to that person, and where that person could reasonably be expected to relocate.
In addition to holding that the relocation principle is an element of the Convention definition of “refugee”, the plurality of the High Court described, at least in broad terms, the content of the principle. First, the principle applied where it was “reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”.[46] Second:[47]
What is “reasonable”, in the sense of “practicable”, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.
[46] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at page 26 ([23])
[47] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at page 27 ([24])
Third, the plurality quoted with apparent approval[48] the following passage from the speech of Lord Hope of Craighead in Januzi v Secretary of State for the Home Department:[49]
I too would hold that the question whether it would be unduly harsh for a claimant to be expected to live in a place of relocation within the country of his nationality is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic human rights.
[48] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at page 27 ([25])
[49] Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at page 457
Reasonableness
There are a number of cases that consider how a decision-maker should assess whether it is reasonable, in the sense of practicable, for a claimant for refugee status to be relocated within that person’s country of nationality. One is Randhawa where Black CJ said that the realities it was relevant to consider when determining whether it was reasonable to relocate include those identified by Professor Hathaway in the following passage:[50]
The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.
[50] (1994) 52 FCR 437 at page 442
This passage must now be read subject to what Lord Hope of Craighead said in the passage from his Lordship’s speech in Januzi that I have set out above.
Another decision is that of the Full Federal Court in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs.[51] In that case, the Tribunal was satisfied that the applicant, a national of Fiji, had a well-founded fear of persecution in the area from which the applicant fled, but concluded it was reasonable for her to relocate to another area of Fiji because her daughter in Australia would be able to provide the applicant with financial assistance. The Full Federal Court held the Tribunal did not apply the right test when assessing whether it was reasonable for the applicant to relocate. Branson J (with whose reasons North J agreed) so concluded because of the “summary way in which the Tribunal dealt with the issue of relocation, including its failure to explore the significance of the appellant’s references to having no-one in Fiji ‘to look after her’”.[52] The Tribunal “was required to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within Fiji”; but it failed to “give consideration to the practical realities facing the appellant with respect to accommodation and care should she seek to relocate within Fiji”.[53]
[51] [2005] FCAFC 37
[52] [2005] FCAFC 37 at [22]
[53] [2005] FCAFC 37 at [22]
And a third case is SYLB v Minister for Immigration and Multicultural and Indigenous Affairs.[54] There, the Tribunal found that one of the applicants before it, an ethnic Albanian, had a well-founded fear of persecution if she were to return to Mitrovice in Kosovo from which she and her husband had fled, but that it was reasonable for her and her husband to relocate to Gjokove. The Tribunal so found even though it accepted the applicant suffered from post traumatic stress disorder, and found it distressing even to consider the possibility of having to return to anywhere in Kosovo. Branson J held the Tribunal misunderstood the legal test of relocation because it failed to consider the reasons the applicant was unwilling to “avail herself of the diplomatic or consular protection extended abroad by her country”.[55] Instead, the Tribunal considered simply “whether it would be unreasonable to expect the applicants to live in Gjokove, a city in which, as the Tribunal found, they would be safe from persecution for a Convention reason”.[56] Her Honour concluded:[57]
To determine whether it was unreasonable to expect the female applicant to avail herself of the diplomatic or consular protection of her country on the basis that she would on return to Kosovo relocate to Gjokove the Tribunal was obliged to review the personal circumstances of the female applicant. It was also obliged to consider the circumstances that she could be expected to face should she return with her husband to Kosovo and relocate to Gjokove. Having undertaken these two steps it was then obliged to make a judgment as to whether it would be unreasonable to expect the female applicant, having regard to her personal circumstances and the circumstances that she could be expected to face in Gjokove, to avail herself of the diplomatic or consular protection of her country on the basis that she would relocate to Gjokove.
[54] [2005] FCA 942 (Branson J)
[55] [2005] FCA 942 [26]
[56] [2005] FCA 942 [26]
[57] [2005] FCA 942 [27]
Does the relocation principle contain two limbs?
I now turn to consider the Minister’s submission that the relocation principle does not comprise two, separate limbs, and that the applicant’s challenge to the Tribunal’s decision erroneously relies on the principle comprising two, separate limbs.
It is not entirely clear to me what the Minister intends to convey by that submission. For he accepts that the relocation principle requires the decision-maker to undertake two inquiries, the first being whether somebody has a well-founded fear of persecution in the place of relocation, and the second being whether it is reasonable to relocate to that place. It appears, however, that the Minister’s argument is as follows. Certain factors may be relevant to both inquiries. It is not, therefore, necessary for the Tribunal to consider twice those factors that are common to both inquiries, once in connection with the first inquiry, and then again in connection with the second inquiry. Thus, to the extent the Tribunal in this case did not, when determining whether it was reasonable for the applicant to relocate to Karachi, consider the factors the applicant contends were practical realities, that is not a basis for concluding it did not properly undertake the second inquiry because the Tribunal had in any event considered those factors in determining the first inquiry.
If that is the effect of the Minister’s submission, I do not accept it. The authorities to which I have referred make it clear that, when considering the relocation principle, the decision-maker must address two distinct questions. These are:
a)Having accepted that the claimant has a well-founded fear of being persecuted for a Convention reason if he or she returned to a particular region of the country of his or her nationality, is there a different region in that country where, objectively, there is no appreciable risk of the occurrence of the feared persecution?
b)If (a) is answered in the affirmative, is it reasonable, in the sense of practicable, to expect the claimant to be sent to that other region having regard to:
i)the particular circumstances of the claimant,
ii)the circumstances the claimant would reasonably be expected to face in the place of relocation, and
iii)the impact on the claimant of being sent to the place of relocation?
It is true that the one item of information may be relevant, or potentially relevant to both questions. But because there are two distinct questions, the information would be relevant or potentially relevant in different ways. The relevance or potential relevance of information that is considered by a decision maker in connection with the first issue is whether the information supports or does not support the proposition that the claimant will face persecution in another region of the country of the claimant’s country of nationality. The relevance or potential relevance of the information in relation to the second issue would be whether the information supports or does not support the proposition that it would be reasonable for the claimant to relocate in that other region.
Was the Tribunal required to consider the asserted practical realities?
I do not understand the Minister to submit that the asserted practical realities are not matters the Tribunal was required to consider when assessing whether it was reasonable for the applicant to relocate to Karachi. His submission is that the Tribunal did consider these matters.
In my opinion, the asserted practical realities were matters the Tribunal was required to consider when determining whether or not it was reasonable to expect the applicant to relocate to Karachi. They are circumstances which it was reasonably open to the Tribunal to find the applicant would reasonably be expected to face in Karachi; and, if the Tribunal were to find that these were circumstances the applicant would reasonably be expected to face in Karachi, they are circumstances that the Tribunal was required to consider in assessing the impact on the claimant of being sent to Karachi and hence, of the reasonableness of expecting him to relocate there.
Did the Tribunal consider the asserted practical realities in the manner required by the relocation principle?
As the Minister submits, the Tribunal did refer to the asserted practical realities. It found the asserted realities were circumstances the applicant would encounter if he were to relocate to Karachi. And, as the Minister also submits, the Tribunal referred to the asserted practical realities in the context of its consideration of whether it was reasonable to expect the applicant to relocate to Karachi. In that context, the Tribunal referred to attacks on Shi’as in Karachi,[58] the presence of extremist groups including the Taliban from Afghanistan in Pakistan and Karachi that are hostile to Shi’as,[59] the government’s inability to prevent sectarian violence,[60] and the applicant’s being easily identifiable as a Pashtun Shi’a from Parachinar.[61]
[58] CB217, [79], [84]
[59] CB217, [86]
[60] CB218, [87]
[61] CB218, [88]
The Tribunal, however, considered this information only with a view to determining whether the applicant was likely to suffer harm in Karachi. Thus, in relation to the information that showed the presence of extremist groups including the Taliban from Afghanistan in Pakistan and Karachi that are hostile to Shia’s, the Tribunal concluded that “the risk of the applicant suffering harm because of his religion and his will to practice his religion is remote”.[62] And in relation to the other information to which it referred, the Tribunal concluded “there is only a remote risk of the applicant suffering harm in Karachi because of his tribal origin, his religion and the part of Pakistan he comes from”.[63]
[62] CB217, [85]
[63] CB218, [90]
It was certainly relevant for the Tribunal, when determining whether it was reasonable for the applicant to relocate to Karachi, to consider whether the asserted practical realities would expose the applicant to physical harm. But what is absent from the Tribunal’s reasons for decision is evidence that it asked itself what the relocation principle required it to ask itself; and that is whether it was reasonable, in the sense of practicable, to expect the applicant to relocate to Karachi having regard to the fact that the circumstances the applicant would reasonably be expected to face in Karachi would include the asserted practical realities. And by its having failed to ask itself this question, the Tribunal’s conclusion that it was reasonable for the applicant to relocate to Karachi was arrived at as a result of jurisdictional error.
Not only did the Tribunal not ask itself whether, having regard to the asserted practical realities, it was reasonable to expect the applicant to relocate to Karachi. It did not consider all of the personal circumstances of the applicant relevant to determining the reasonableness of the applicant’s relocating to Karachi. In particular, the Tribunal did not consider in that context the applicant’s evidence (which the Tribunal accepted) of his actual experiences. That experience was his having lived in a region where Shi’a Muslims were being targeted for no reason other than their religion, one cousin of the applicant having been executed, and another having been injured in a terrorist attack, and his family owning a farm that was exposed to shooting from remote gunmen as a result of which it was not possible for the applicant to work on the farm without risking death.
Paraphrasing what Branson J said in SYLB, to have properly considered whether the relocation principle applied to the applicant, the Tribunal was obliged to review the personal circumstances of the applicant. It was also obliged to consider the circumstances that he could be expected to face should he return to Pakistan and relocate to Karachi. Having undertaken these two steps the Tribunal was then obliged to make a judgment as to whether it would be unreasonable to expect the applicant, having regard to his personal circumstances and the circumstances that he could be expected to face in Karachi, to avail himself of the diplomatic or consular protection of Pakistan on the basis that he would relocate to Karachi. The Tribunal did not undertake this task.
To have properly undertaken this task in relation to the applicant, the Tribunal would have had to ask itself a question along the following lines. Given that:
a)the applicant has fled from a region where Shi’a Muslims were being targeted for no reason other than their religion, where one cousin of the applicant was executed, and another was injured in a terrorist attack, and where his family owned a farm that was exposed to shooting from remote gunmen as a result of which it was not possible for the applicant to work on the farm without risking death; and
b)the applicant has completed ten years of schooling, attended colleges after that, speaks Pashto and Urdu, has worked on his family’s farm, and, when in Karachi, has managed to find work and, for these reasons, he would be well-placed to settle into Karachi and find employment and accommodation there; and
c)there are reports that Sunni extremists are present in Karachi and that Shi’a neighbourhoods in the city are visibly barricaded and fortified;[64] that Karachi has witnessed a number of large scale attacks on Shi’a targets since late 2009;[65] that the Pakistan government was unable to stop the attacks against Shi’as not only in Karachi but elsewhere in Pakistan;[66] that there were reports of links between the government and extremist groups, their presence in Karachi and Pakistan and their aims;[67] the applicant is identifiable as a Pashtun Shi’a from Parachinar;[68] and that the applicant comes from a group that has opposed the Taliban there;[69]
is it reasonable to expect the applicant to relocate to Karachi?
[64] CB213, [58]
[65] CB213-214, [59]-[60]
[66] CB218, [89]
[67] CB218, [89]
[68] CB218, [89]
[69] CB218, [89]
Ground 1A of the application for review, therefore, is made out.
Ground 2 – failure to consider claims
The applicant claims the Tribunal failed to consider three claims. The first was a claim based on the applicant’s being a member of a particular social group of Shi’a Muslims who have fled Pakistan. The second was membership of a Pashtun Shi’a tribe of Parachinar that had refused to allow the Taliban access to their area. And the third was a claim based on “persecution through dispossession”.[70]
Ground 2 – failure to consider claim based on membership of a particular social group of Shi’a Muslims who have fled Pakistan
[70] Applicant’s written submissions, [31]
The Minister does not dispute the applicant made a claim based on his being a member of a particular social group, namely, Shi’a Muslims who have fled Pakistan.[71] Nor does he dispute the Tribunal did not consider such claim. Instead, the Minister submits that the applicant abandoned the claim; or, if the applicant did not abandon the claim, to the extent the claim was based on his past experiences in Pakistan, that claim added nothing to the claim that was considered by the Tribunal; and, in any event, the group “Shi’a Muslims who have fled Pakistan” is not a particular social group for the purposes of the Convention.
[71] CB51, [33]
Was the claim abandoned?
In support of his submission that the applicant abandoned this claim, the Minister relies on the decision of Bennett J in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs, and in particular to the following passage from her Honour’s reasons:[72]
A claim made to the Department and referred to in the Delegate’s decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate’s decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.
[72] SZEIV v Minister for Immigration and Multicultural Affairs [2006] FCA 1798 at [34]
The words “to abandon” and “abandonment” arise in many legal contexts. The words often denote acts or omissions that manifest an intention to relinquish some legal right or claim. The words sometimes are conclusions that are applied when other legal doctrines such as election or waiver are found to apply. And the words are used in civil litigation where a litigant may be held to have abandoned a cause of action or a defence.
At least where issues are defined by pleadings, a party to litigation is generally taken not to have abandoned a cause of action or defence only because the party said nothing about the claim or defence when addressing the court. An example is provided by the decision of the Court of Appeal of Western Australia in Briggs v Lunt (No.3).[73] There, the trial judge considered as abandoned a limitation defence that had been pleaded, but in relation to which the parties made no submission to the Court. The Court of Appeal held the trial judge should not have treated the defence as abandoned. The Court said:[74]
When it was clear that neither counsel was going to address submissions to the issues, the correct approach would have been for the trial judge to have asked counsel for the parties to explain why no submissions were made. If he had been told that the limitation defence had not been abandoned, then his Honour would have been justified in requiring the parties to make submissions about the defence and the issues which then arose.
[73] Briggs v Lunt(No 3) [2011] WASCA 44
[74] Briggs v Lunt(No 3) [2011] WASCA 44 at [116]
Proceedings before the Tribunal are very different from those that are before courts. Like courts, however, the Tribunal determines applications for review before it on the basis of its consideration of issues. What issues are before the Tribunal in any given case is determined by two things. The first are the claims the applicant expressly articulates in his or her application to the Minister and to the Tribunal, or which otherwise arise clearly on the materials before it. The second is the issues the delegate considered dispositive when rejecting an applicant’s claim, and any other issues that the delegate did not consider dispositive but which the Tribunal has given notice to the applicant are issues before the Tribunal.[75] If, in a court, an issue that is raised on the pleadings cannot be regarded as having been abandoned only because the parties did not address the court on that issue, there is even stronger reason for concluding that an issue that is before a Tribunal cannot be treated by the Tribunal as having been abandoned only because the applicant does not address the Tribunal in relation to that issue.
[75] SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at page 163 ([35])
In my opinion, the applicant made the claim he feared persecution on the ground he was a member of a particular social group of Shi’a Muslims who have fled Pakistan. That claim was before the delegate; and it was before the Tribunal. The applicant engaged in no conduct, or made no omission, that could have led the Tribunal reasonably to apprehend that the applicant intended to abandon that claim. It was not open to the Tribunal to assume the applicant abandoned the claim only because he said nothing about it to the Tribunal. Before the Tribunal could reasonably have concluded that the applicant had abandoned this claim, the Tribunal ought to have specifically asked the applicant whether he still relied on the claim.
Are “Shi’a Muslims who have fled Pakistan” a “particular social group”?
Whether or not a group of persons is a “particular social group” within the meaning of the Convention definition of “refugee” is to be determined according to the following principles:[76]
Therefore, the determination of whether a group falls within the definition of “particular social group” in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. . . . [A] group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”.
[76] Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 at page 400 ([36])
The Minister submits that “Shi’a Muslims who have fled Pakistan” does not define a particular social group because the only characteristic or attribute that was common to members of such particular social group was a shared fear. It may well be that the Minister is correct. However, it cannot be said that it is inevitable that the description “Shi’a Muslims who have fled Pakistan” covers persons whose only common characteristic is a shared fear. Whether or not the description “Shi’a Muslims who have fled Pakistan” does so was a matter for the Tribunal, and not for this Court, to determine.
Did the claim add anything to the applicant’s fear of persecution on the basis of his religion?
The Minister’s submission that the applicant’s claim based on his being a member of “Shi’a Muslims who have fled Pakistan” added nothing to his claim to fear persecution on the basis of his religion assumes that it is inevitable that the Tribunal would have so determined, had it considered the claim. However, I am not satisfied that is the case. Whether or not a claim based on membership of “Shi’a Muslims who have fled Pakistan” constituted a valid and separate claim from that based on religion was a matter for the Tribunal to consider and determine.
Conclusion
In my opinion, the Tribunal made a jurisdictional error by failing to consider the applicant’s claim based on membership of “Shi’a Muslims who have fled Pakistan”.
Ground 2 – failure to consider claim based on membership of tribe that had refused access to Taliban
The issue that arises on this part of the applicant’s claim is whether there was before the Tribunal a claim that the applicant feared persecution because he was from a Pashtun Shi’a tribe of Parachinar which refused to allow the Taliban access to their area. The Minister submits there was no such claim. In determining the issues that arise, I bear in mind the principles that I set out in SZTDQ v Minister for Immigration & Anor[77] which I will not repeat here.
[77] SZTDQ v Minister for Immigration & Anor [2014] FCCA 537 at [12]-[13]
The applicant submits the claim was acknowledged by the Tribunal in the following sentence:[78]
The Tribunal also acknowledges that the applicant is identifiable as a Pashtun Shi’a from Parachinar and that he comes from a group that have opposed the Taliban there.
[78] CB218, [89]
In my opinion, that is not the claim the applicant submits was before the Tribunal. And the applicant has pointed to no other material from which the claim can be inferred. In any event, the claim as identified by the applicant was considered by the Tribunal. The Tribunal referred to its being unaware of reports of Pashtun Shi’as from Parachinar being attacked in Karachi, and concluded there was only a remote risk of the applicant suffering harm in Karachi because of his tribal origin, his religion, and the part of Pakistan he comes from.[79] This part of the applicant’s claim fails.
[79] CB218, [90]
Ground 2 – failure to consider claim based on dispossession
The applicant submits there was before the Tribunal a claim similar to the one that Driver FM (as his Honour then was) in SZALM & Ors v Minister for Immigration & Multicultural & Indigenous Affairs[80] held was before the Tribunal in SZALM but the Tribunal failed to consider that claim. To deal with this part of the applicant’s case, it will be necessary to identify the claim Driver FM held was before the Court in SZALM.
[80] SZALM & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 262
In SZALM, the applicants claimed fear of persecution because of their being members of a particular social group, namely, non-African landowners. They claimed, and the Tribunal was taken to have accepted, that the applicants had been forced off their farm by “war veterans”. The Tribunal found, however, that the applicants were able to, and did relocate to Harare. Before the Court, the applicants claimed the Tribunal failed to consider their particular social group claim. Driver FM held that the Tribunal dealt adequately with the applicants’ fear of physical harm by finding they could relocate and had relocated to Harare where they would be relatively safe.[81] His Honour found, however, the Tribunal did not consider “whether the applicants had been persecuted by being forced off their family farm and whether that persecution by dispossession was continuing”.[82]
[81] SZALM & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 262 at [17]
[82] SZALM & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 262 at [18]
Driver FM found the Tribunal made a similar error in S2012 of 2003 v Minister for Immigration & Anor.[83] In that case, the Tribunal accepted the applicants had been driven off their leased lands by indigenous Fijians because of their race. The Tribunal also found, however, that the applicants had been able to relocate elsewhere in Fiji and find employment. Further, the applicants asserted, and the Tribunal accepted, that they would not return to the lands of which they had been dispossessed because there was nothing there for them.[84] His Honour found:[85]
[T]he Tribunal fell into error by proceeding on the assumption that the applicants must accept the victory of their persecutors and live their lives differently elsewhere in Fiji. The fact that the applicants were resigned to this course, and had indeed relocated and changed employment, did not mean that the permanent deprivation of land as a means of earning a livelihood was not a continuing act of persecution which the applicants could be expected to accept. As I said in SZALM at [19] it is erroneous to assume that it is reasonable to expect applicants to accept their dispossession and live their lives differently: S395/2002 v Minister for Immigration [2003] HCA 71. The applicant had not made a positive choice not to return to Tavua. That choice had been made for them by indigenous Fijians who drove them from their farm there, which provided both a home and a livelihood.
[83] S2012 of 2003 v Minister for Immigration & Anor [2008] FMCA 954
[84] S2012 of 2003 v Minister for Immigration & Anor [2008] FMCA 954 at [23]
[85] S2012 of 2003 v Minister for Immigration & Anor [2008] FMCA 954 at [23]
Returning to the claim that is before me, the applicant submits that it was part of his claim for protection that the Taliban wanted to occupy his family’s land.; and that, accordingly, there was before the Tribunal a claim of persecution based on continuing dispossession that the Tribunal failed to consider.
I agree that, based on the reasoning of Driver FM in SZALM and S2012 of 2003, there was before the Tribunal a claim based on continuing dispossession. With respect, I am doubtful, however, the dispossession claims identified by Driver FM in those two cases state a valid claim for refugee status under the Convention. The Convention definition of “refugee”, incorporating as it does the relocation principle, excludes persons who, owing to a well-founded fear of persecution for a Convention reason, are outside their country of nationality, but whose country is willing and able to provide protection to those persons in at least some part of the country, and it is reasonable to expect the persons to relocate to that part of their country. That implies that a person who has been persecuted by dispossession of land in one part of his country and flees to another part of the country, where his country is able and willing to afford the person protection, cannot at that point be a “refugee” within the Convention definition. By fleeing his or her persecutors, the person has escaped the harm he or she feared, and has availed himself or herself of his or her country’s protection. The harm the person feared brought about at the time and as a result of the dispossession does not remain with the person in the new location.
Given that I have found the Tribunal made a jurisdictional error in the manner it applied the relocation test, I do not propose to express a concluded view on whether a claim based on dispossession states a valid ground for refugee status.
Grounds 3, 4, and 5 – misunderstanding of the well-founded fear test
These three grounds of review were treated as one by counsel for the applicant. It relates to the Tribunal’s conclusion that the applicant would not face a well-founded fear of persecution if he were to relocate to Karachi. The applicant submits that, although the Tribunal stated the correct legal test of what constitutes a “well-founded fear of persecution”, its conclusion in the context of the materials that were before the Tribunal that the applicant would not have a well-founded fear of persecution if he returned to Karachi indicates that the Tribunal either did not understand that principle or, if it did, the Tribunal misapplied the test. The applicant also submits that the Tribunal’s decision could only have been arrived at through irrationality.
In my opinion, it was reasonably open to the Tribunal to conclude in the context of the materials that were before it, and which it set out in its reasons for decision, that the applicant would not have a well-founded fear of persecution if he were to relocate to Karachi. This part of the applicant’s claim, therefore, fails.
Ground 6 – complementary protection
The applicant submits the Tribunal made two errors in concluding the applicant did not meet the criteria specified in s.36(2)(aa) of the Act. The first is that the Tribunal did not give independent consideration to whether the applicant met the criteria. By using the words “and so, for the same reasons” the Tribunal simply incorporated the reasons on which it relied for concluding the applicant did not satisfy the Convention definition of “refugee”. The second error is that, for the reasons the applicant submits the Tribunal misunderstood or misapplied the relocation principle when determining whether the applicant was a “refugee” within the Convention definition of that term, the Tribunal misapplied or misunderstood the relocation principle specified in s.36(2B) of the Act.
In my opinion, in determining whether s.36(2B) of the Act applied, the Tribunal was required to ask itself the same questions it was required to ask when considering the relocation principle in the context of whether the applicant fell within the Convention definition of “refugee”. Given that I have found the Tribunal made a jurisdictional error in the manner in which it applied the relocation principle to whether the applicant was a “refugee”, and given the Tribunal, when considering the applicant’s complementary protection claim, relied on what it said about relocation in relation to whether the applicant was a “refugee” within the Convention definition of the term, it follows that the Tribunal made a jurisdictional error by concluding that, because of s.36(2B) of the Act, the applicant will not suffer significant harm in Pakistan.
In light of this conclusion, I do not propose to consider whether the Tribunal made any other error in relation to its consideration of whether the applicant satisfied the criteria specified in s.36(2)(aa) of the Act.
Conclusions and disposition
I have concluded the Tribunal committed jurisdictional error. It did not correctly apply the relocation principle and s.36(2B) of the Act to the applicant’s claims for protection. And it did not consider one of the claims that was before it. I therefore propose to make an order setting aside the Tribunal’s decision, an order that the Tribunal determine the applicant’s claims according to law, and an order that the Minister pay the applicant’s costs.
At the hearing, the applicant indicated he wished to apply for leave to amend the application to include a claim for a declaration. Counsel agreed to postpone the determination of that application after I deliver my reasons on the grounds set out in the applicant’s further amended application. Accordingly, I also propose to reserve to the applicant liberty to apply to list the matter before me for the purpose of hearing any application to amend the application to include a claim for declaratory relief and, if such leave is granted, whether declaratory relief should be granted.
I certify that the preceding eighty one (81) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 25 September 2014
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